and Submitted December 5, 2018 Seattle, Washington
from the United States District Court for the District of
Idaho, D.C. No. 1:17-cr-00147-BLW-1, B. Lynn Winmill,
District Judge, Presiding .
Francis J. Zebari (argued), Special Assistant United States
Attorney; Bart M. Davis, United States Attorney; United
States Attorney's Office, Boise, Idaho; for
Theodore Braden Blank (argued) and Robert K. Schwarz, Federal
Defender Services of Idaho, Boise, Idaho, for
Before: William A. Fletcher, Jay S. Bybee, and Paul J.
Watford, Circuit Judges.
panel vacated a sentence and remanded for resentencing in a
case in which the district court held that delivery of
methamphetamine in violation of Oregon Revised Statutes
§ 475.890 does not qualify as a "controlled
substance offense" under U.S.S.G. §§
2K2.1(a)(4)(A) and 4B1.2(b).
district court agreed with the defendant that Oregon's
delivery-of-methamphetamine offense is overbroad as compared
to the federal definition of "controlled substance
offense" because only the former encompasses soliciting
the delivery of methamphetamine. The panel held that
United States v. Shumate, 329 F.3d 1026 (9th Cir.
2003) (construing the same Oregon definition of
"delivery"), compels the holding that §
475.890 is not overbroad on the basis that it encompasses
soliciting delivery. The panel that the district court erred
in applying Sandoval v. Sessions, 866 F.3d 986 (9th
Cir. 2017), which is inapplicable in that it involved the
different analysis employed for determining whether an
offense qualifies as a "drug trafficking crime"
under the Controlled Substance Act.
defendant asked the panel to reconsider this court's
decision in Shumate on the ground that the
commentary to § 4B1.2 (Application Note 1), on which
Shumate relied to hold that "controlled
substance offense" encompasses solicitation offenses,
lacks legal force because it is inconsistent with the text of
the guideline. The panel wrote that if it were free to do so,
it would hold that the commentary improperly expands the
definition of "controlled substance offense" to
include other offenses not listed in the text of the
guideline, but that it is bound by this court's decision
in United States v. Vea-Gonzales, 999 F.2d 1326 (9th
Cir. 1993), which held that Application Note 1 of §
4B1.2 is "perfectly consistent" with the text of
panel rejected the defendant's argument that Oregon's
delivery-of-methamphetamine offense sweeps more broadly than
the federal definition of "controlled substance
offense" because the Oregon offense criminalizes the
mere offer to sell methamphetamine. The panel explained that
as noted in Sandoval, offering to sell a controlled
substance constitutes soliciting delivery of a controlled
substance, and because solicitation does fall within the
definition of "controlled substance offense" under
§ 4B1.2, an offer to sell a controlled substance under
Oregon law is a categorical match for solicitation of a
"controlled substance offense" under § 4B1.2.
panel concluded that the district court should therefore have
applied a base offense level of 20 under §
Judge Watford wrote that the Oregon offense criminalizes more
conduct than the federal offense does, rendering the Oregon
offense overbroad, because a mere offer to sell does not
constitute solicitation of a "controlled substance